Would airstrikes against Assad be lawful and effective?: Reactions to the State “dissent cable”

As you have probably read, 51 career foreign service officers in the State Department have written an internal memorandum recommending “a judicious use of stand-off and air weapons” by the United States against the Assad regime, in order to coerce Assad to comply with the February 2016 Terms for a Cessation of Hostilities — the cease-fire arrangement negotiated principally by the United States and Russia — and to “end the daily mass killing of civilians and egregious violations of human rights.”

The deep frustration on the part of these diplomats is entirely understandable, and justified. Surely they are correct that “the moral rationale for taking steps to end the deaths and suffering in Syria, after five years of brutal war, is evident and unquestionable.” And we share their view — who in the United States does not? — that “[t]he strategic imperatives for taking steps to end the bloodshed are numerous and equally compelling,” especially with respect to the prospects of defeating ISIL in Syria (see paragraph 6 of the cable).

Even so, two important things are conspicuously, and troublingly, missing from the “dissent channel” cable — namely, (i) any discussion of whether the particular “steps” the diplomats propose would be effective, rather than deeply counterproductive, and (ii) whether the recommended use of force against Syria would be legal.

First, it is striking that the foreign service officers do not offer any basis for their assumption that “a judicious use of stand-off and air weapons” by the United States would materially increase the odds of securing an effective cease-fire in Syria, even if it did result in “ground[ing] of “the [Assad] regime’s warplanes,” which the diplomats (perhaps optimistically) assume. More importantly, the diplomats, to their credit, “recognize that military action is not a panacea, . . . that the Asad regime might prove resilient even in the face of U.S. strikes,” and “that the risk of further deterioration in U.S.-Russian relations is significant.” Yet the cable does not offer not a single reason to think that these and other possible, harmful “second-order effects” of such a military campaign — including what the cable offhandedly refers to as “a slippery slope that ends in a military confrontation with Russia” — would not be much worse than the speculative benefits. Perhaps there’s a case to be made that the benefits would be worth the enormous risks, but, if so, the cable does not even try to make it.

Second, the dissent cable is surprisingly silent on the question of whether an air operation by U.S. forces to “ground . . . the [Assad] regime’s warplanes” would be lawful. This silence is alarming, because the legal obstacles are, to say the least, formidable — as the signatories presumably would have learned if they had consulted with their colleagues in the State Department Legal Advisor’s Office. (The names of the signatories to the cable have (understandably) not been made public. We would be surprised, however, if they include officials from “L,” or if the cable reflects, or takes into account, “L”‘s views. Indeed, a “dissent channel” cable typically is not cleared by the various bureaus within State that would review any official, “front channel” guidance.)

For starters, as a matter of domestic law, there is a serious constitutional question whether the President could unilaterally initiate such a military campaign without statutory authorization — especially if, as we suggest below, such a use of force would put the U.S. in breach of its treaty obligations. (See Marty’s earlier discussion of this question in connection with the question of possible strikes against Assad in 2013.) As the President himself recently said, “the scope of executive power in national-security issues is very broad, but not limitless.”* And even if the President had an Article II authority to initiate the proposed operation, the War Powers Resolution would likely limit it to 60 days — which might well decrease the likelihood that the targeted strikes would have the salutary effect the diplomats are seeking.

In fairness to the cable signatories, however, they do not expressly advocate, or even suggest, that the President should act on his own, without congressional authorization. Indeed, the leak of their cable might be the beginning of a campaign to prompt the legislature — not merely the President — to act. If so, perhaps Congress would authorize the use “of stand-off and air weapons” against the Assad regime — although it bears keeping in mind that the House refused to approve such authorization back in 2013, when President Obama urged them to provide it, even after being confronted with significant evidence that Assad was using chemical weapons against civilians.

Even if Congress did provide such authorization, however, that would only tee up the question of whether a unilateral use of force by the United States against Syria, without Security Council approval or even the assent of most other nations, would violate international law — in particular, whether it would breach the U.S.’s obligations under Article 2(4) of the U.N. Charter, which provides that states “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” (This situation is not analogous to Libya 2011, where the U.N. Security Council had authorized the use of force.)

We anticipate that at least some of the signatories to the dissent channel cable would argue that “humanitarian” intervention does not violate the Charter. Whatever the merits of the case for an amendment of the Charter to permit unilateral humanitarian intervention in specified circumstances, however, the Charter as presently written does not recognize such an exception, and the United States has not accepted it as a valid legal doctrine, either, even in a case — unlike the present situation in Syria — in which the use of force would be supported or approved by virtually all our NATO allies. (See also pages 1057-60 of Ashley’s article here; and Jack Goldsmith’s 2013 post.) In the one recent case in which the United States did use force without Security Council authorization for humanitarian purposes — Kosovo in 1999 — the State Department notably declined to assert that the intervention was lawful. Instead, it merely offered a “pragmatic justification” for the intervention, and in so doing placed significant emphasis on the fact that virtually all NATO states supported or approved that multilateral use of force, which presumably would not be the case here.

Of course, the fact that the proposed use of force would breach the Charter does not mean that political branches could not jointly authorize it: The modern understanding is that Congress may, as a matter of domestic law, authorize action that violates U.S. treaty obligations. But Congress rarely does so, and for good reason: It would establish a very dangerous precedent — one that we’d presumably not want other nations to emulate — and would undermine the authority of the United States in its own efforts to ensure respect for, and compliance with, the Charter, and international law more broadly. Did the 51 diplomats take into account these substantial costs of their proposed course of action — in addition to those that they specifically identify, which are themselves fairly serious (e.g., “further deterioration in U.S.-Russian relations” and perhaps even “a military confrontation with Russia”)? Their cable suggests that they did not.

In sum, there is good reason that the President, in 2013, “recoil[ed] from the idea of an attack [on Syria] unsanctioned by international law or by Congress.” Those same concerns are present today. Therefore, even if there were some assurance that military intervention in Syria would improve matters there, and would not lead to much worse “second-order effects” — a case the cable signatories do not even attempt to make — the domestic and international legal hurdles are serious and real. Indeed, strikes on the Assad regime would likely trigger claims by Syria of a right of self-defense (and by Russia of a right of collective self-defense) in response to U.S. “armed attacks.” And what if the attacks did not seriously weaken Assad, or prompt a more effective cease-fire? In that case, as President Obama has noted, “the prospect of Assad having survived the strike[s] and claiming he had successfully defied the United States, [and] that the United States had acted unlawfully in the absence of a UN mandate, . . . would have potentially strengthened his hand rather than weakened it.”

At the very least, any discussion about the merits of the 51 foreign service officers’ proposal must take into account these and other law-related costs. Unfortunately, their dissent channel cable does not do so.

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* Earlier, when the President sought congressional authorization for the proposed 2013 strikes in Syria, he stated that “I believe I have the authority to carry out this military action without specific congressional authorization.” The President did not offer any justification for that statement, however (perhaps he had concluded that he already had some sort of statutory authorization that was not “specific”), and we think that it was, at best, questionable, at least if the President intended to suggest he had a constitutional authority to act unilaterally. For what it is worth, in his book Power Wars, Charlie Savage reports that an interagency group of lawyers, considering the legality of a possible operation in Syria back in 2012, realized that the constitutional case for unilateral presidential action was at least subject to serious question (and that the international law basis was even more dubious). Therefore, when the President and his staff debated the question of whether to initiate the use of force in the summer of 2013, White House Counsel Kathy Ruemmler, speaking for the lawyers group, urged the President to ask Congress for authorization, which he eventually did. Savage also quotes Ben Rhodes as saying that although perhaps the lawyers could have “come up with a theory,” the President himself told his aides, at the time of his decision, that he agreed with the narrower view of Article II authority that he himself had articulated as a candidate in 2007.

About the Author(s)

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).